Deporting Foreign College Students Would Be Really Dumb
(Bloomberg Opinion) -- Does President Donald Trump want to deport everyone who is not an American citizen?
Sometimes it seems that way. His administration recently announced that it may send home international students at colleges and universities that choose online learning in the fall, in an effort to reduce the risks associated with the coronavirus pandemic.
The announcement is cruel. It’s also stupid.
It is cruel to those students, many of whom are now living in the U.S., and who are suddenly threatened with deportation.
It is stupid because one of the greatest U.S. strengths is its unparalleled institutions of higher education, which attract the world’s best students. Many international students go back to their own countries as friends of the U.S. and its people, keenly appreciative of the best American traditions and values.
Many of them end up in positions of leadership at home, where they work closely and well with Americans. If you were an enemy of the U.S., and aimed to weaken it and to diminish its influence, you would be cheering steps to prevent international students from studying here.
It’s no wonder that the new rule has prompted a lawsuit, filed on Wednesday by Harvard University and the Massachusetts Institute of Technology.
But in some ways, the most fundamental problem lies elsewhere. The Department of Homeland Security announced its new policy on international students without using a process that guards against both cruelty and stupidity: public notice and comment.
For background: The Administrative Procedure Act, enacted in 1946, is a kind of Constitution for the regulatory state, complete with a Bill of Rights. A key provision says that before an agency issues a final rule – on highway safety, on clean air, on education, on air travel – it has to give the public advance notice and an opportunity for comment (usually consisting of at least 60 days).
Notice-and-comment rule-making has been described as the greatest invention of modern government. While that’s an exaggeration, it’s genuinely great. It diminishes the risk of arbitrariness and authoritarianism. It tells the nation’s most powerful agencies: You work for the people, not vice versa. You have to listen to them first.
Public officials might work hard on a rule involving (say) food safety. But they might miss something important. Farmers in Ohio or Florida might know something that the Food and Drug Administration has overlooked – about the real-world impact, about preferable alternatives, about unintended consequences.
Time and again, public officials learn from public comment. Sometimes they learn that their original plan was a terrible idea – and they withdraw it. Sometimes they learn that there’s a better way to achieve what they wanted – and they choose that instead.
The Department of Homeland Security has a lot of authority over immigration and immigrants, and it can do a great deal to affect the opportunities and obligations of international students. Still, it has to comply with the Administrative Procedure Act, which means that it usually has to invite comment.
To be sure, the Act creates some exceptions to that requirement. In emergencies, for example, federal agencies can act immediately.
But let’s bracket the legal question and ask about fair process, and about how agencies should be operating in a democracy. There are a lot of colleges and universities in the U.S., and they have very different situations.
Some of them can open safely in the fall. Some of them just can’t. Some lack the facilities that would permit social distancing. Some are poorly equipped to provide a program of online learning. Some are in a strong position to provide such a program. Some are in areas where Covid-19 is rampant (and where a lot of people are dying). Some have a lot of international students, many of whom are now in the U.S.
One of the Trump administration’s goals seems to be to pressure colleges and universities to open in the fall.
If that’s the goal, and if it’s legally acceptable for the Department of Homeland Security to use its power over immigration to promote it, then the question remains: With what consequences, exactly, and at what cost, exactly? The notice-and-comment process is designed to get answers to such questions.
The solution is simple. The Department of Homeland Security should either abandon its plan or announce, as soon as possible, that it will allow an appropriate period for public comment. That’s what a democratic government does.
I am a faculty member at Harvard, but have not advised on or participated in the lawsuit in any way. This column focuses on issues of policy, not law.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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